NSSGA to File Amicus Brief

The National Stone, Sand & Gravel Association (NSSGA) will file an amicus brief in support of Mingo Logan’s certiorari petition for the Supreme Court to hear Mingo Logan v. EPA. In July, the D.C. Court of Appeals denied Mingo Logan Coal Company’s petition to rehear en banc its recent decision upholding the U.S. Environmental Protection Agency’s Clean Water Act authority to block projects permitted by Army Corps of Engineers’ permits “whenever” the agency finds harm.

Larry Liebesman of Holland & Knight, who has completed previous work on this case for NSSGA, will file the cert petition. The petition includes quotes from NSSGA members on the devastating impacts that not having reliable permits can have on aggregates operations. NSSGA wishes to thank its many members who provided this valuable information, in addition to California, Georgia, Illinois, New Jersey and Texas aggregates associations, who joined NSSGA on the amicus.

Mingo Logan is seeking to reverse the U.S. Court of Appeals for the District of Columbia Circuit three-judge panel April 23 decision in Mingo Logan Coal Company v. EPA, which effectively allows the U.S. Environmental Protection Agency to revoke an existing permit.

NSSGA joined in filing an industry amicus brief after EPA appealed last year’s decision that EPA had exceeded its Clean Water Act authority, because the CWA does not allow EPA to revoke an existing permit. The three-judge appeals court panel determined that the U.S. District Court for the District of Columbia erred in its March 23, 2012, ruling vacating EPA’s withdrawal of disposal specifications for Mingo Logan’s Spruce Mine activities in West Virginia.

In last year’s ruling, Judge Amy Berman Jackson specifically cited NSSGA’s amicus as helpful in determining the detrimental effects of allowing EPA post permit veto authority. In its June 7 petition for rehearing en banc, Mingo’s lawyers say that the appellate ruling allows EPA to assert authority that is “as audacious as it is unprecedented” and that assigns to the agency a power that Congress intended for the Corps, as the permitting entity under the CWA, to have.